Shooting down a civilian plane? Law and security

Airspace security is most often associated with violations by foreign military aircraft and the response of the Polish Armed Forces. In reality, it also encompasses threats posed by civilian aircraft that may be used in violation of air traffic regulations, including for terrorist activities. 

Can Poland shoot down a civilian aircraft? According to Article 18bf of the Act on the Protection of the State Border, this is permissible only in exceptional circumstances. This applies to situations where the threat is real and immediate, there are no bystanders on board, and the use of other response measures is impossible. 

In short: shooting down a civilian aircraft is permissible only as a last resort, in conditions of terrorist threat and with full respect for the constitutional protection of life. 

When can a civilian plane be shot down in Poland? 

At the outset, it should be emphasized that each state has exclusive authority over the airspace above its territory and, within this authority, exercises the right to decide on everything that happens in that airspace. This principle is reflected in the provisions of international aviation law, i.e., Article 1 of the Paris Convention ¹and the Chicago Convention ². At the national level, the issue of Poland’s sovereignty over airspace is regulated by Article 4 of the Aviation Law ³(hereinafter: PrLotU). 

Within the framework of its sovereignty over airspace, the state has a number of exclusive powers relating to: 

However, sovereignty over airspace, in addition to broad powers, is also connected with responsibility and the resulting obligations, which, on the one hand, concern ensuring the security of that airspace and, on the other, ensuring efficient air navigation services. The state should also refrain from using force against civilian aircraft. 

Sovereignty over airspace is exercised both at the civilian level, manifested by the creation of an appropriate legal framework and the functioning of regulatory bodies and bodies providing air navigation services (ULC and PANSA, respectively), and at the military level. 

In the latter area, military airspace surveillance and appropriate response are implemented using the forces and resources at the disposal of the Air Force Inspector. The Air Traffic Service of the Polish Armed Forces and the Air Operations Centre conduct surveillance of Polish airspace – Air Component Command. 

Both spheres of sovereignty over airspace – civil and military – interpenetrate and complement each other, ensuring conditions for efficient and safe air communication as well as the security and inviolability of the country’s territory. 

Not just a military threat 

Unlawful interference 

For further considerations it will be necessary to understand the conceptual framework, and above all the concept of an act of unlawful interference. 

According to the definition in Chapter 1 of Annex 17 to the Chicago Convention, ⁴an act of unlawful interference is: 

an act or attempted act that threatens the safety of civil aviation, including, among others:  

A quite similar definition of an act of unlawful interference is contained in Article 2 point 20 of the Law on Air Transport , according to which it is an unlawful and intentional act consisting in: 

1) the use of violence against a person on board an aircraft during flight, if this act may threaten the safety of the aircraft; 

2) destroying an aircraft or causing damage to it that prevents its flight or may pose a threat to the safety of that aircraft; 

3) placing on board an aircraft any object, device or substance that may endanger the health or life of passengers or crew or destroy the aircraft or cause damage to it that may prevent its flight or pose a threat to the safety of the aircraft during flight; 

4) hijacking of an aircraft with or without crew and passengers on board, including for the purpose of using the aircraft as a tool for a terrorist attack from the air; 

5) destruction or damage to ground or on-board aviation equipment, disruption of their operation or use of violence against the person operating such equipment, if this causes significant disruption to air traffic or a threat to civil aviation safety; 

6) providing false information that poses a threat to persons and property in air transport; 

7) destruction or serious damage to airport equipment, disruption of its operation or use of violence against the person operating the equipment, if this causes significant disruption to air traffic or the operation of the airport or poses a threat to civil aviation safety. 

As can be seen, the concept of unlawful interference has an extremely broad scope, encompassing a wide range of behaviours that pose or may pose a threat to aircraft, occupants, or air traffic organizations. However, the subject matter of this article limits us to those acts related to aircraft hijacking (illegal seizure of an aircraft), hostage-taking, and attempts to use an aircraft as a tool for an airborne terrorist attack. 

At the same time, we do not consider the perpetrators’ motives or analyse the underlying reasons for their behaviour. From the perspective of state and public security, it is ultimately irrelevant whether an act of unlawful interference is committed for personal reasons or for a politically or ideologically motivated purpose. 

New aviation regulations 

The short career of Article 122a of the Aviation Law 

The Polish response to the tragic American morning of September 11, 2001, was to introduce a new Article 122a of the Air Traffic Law. This provision was added by the Act of July 2, 2004 ⁵, and according to its content, if national security considerations so require and the air defence command authority, taking into account in particular information provided by institutions providing air traffic services, determines that a civilian aircraft is being used for illegal activities, and in particular as a means of a terrorist attack from the air, the aircraft may be destroyed under the principles set out in the provisions of the Act on the Protection of the State Border (these provisions will be described later in this article). 

This provision did not have an exceptionally long career. It became null and void as a result of the judgment of the Constitutional Tribunal of 30 September 2008 (reference number K 44/07). The Tribunal, acting on the motion of the First President of the Supreme Court, ruled that Article 122a of the Law on the Protection of Personal Data is inconsistent with Articles 2, 30, and 38 in conjunction with Article 31, paragraph 3, of the Constitution of the Republic of Poland. 

When issuing its judgment, the Tribunal had to answer the question of whether a regulation authorising a state authority to decide to deliberately deprive innocent persons of their lives in order to prevent potential further damage, regardless of the manner in which detailed procedural issues are addressed, is at all permissible in a democratic state governed by the rule of law, obliged to protect life and inviolable human dignity. 

The Constitutional Tribunal says “no!” 

The Constitutional Tribunal found the challenged provision unconstitutional, citing its violation of human dignity, the right to life, and the principles of a democratic state governed by the rule of law. According to the Tribunal, this provision permitted the sacrifice of the lives of passengers and crew of a hijacked aircraft, including for the protection of material assets or infrastructure. 

The Court emphasized that in a state ruled by law, it is unacceptable to value human life and treat people as mere instruments of public authority. The shooting down of an aircraft means the certain death of those on board, while the threat to those on the ground is merely hypothetical – except when only the bombers are on board. 

After the verdict 

The judgment issued in case file reference K 44/07 resulted in the loss of force of Article 122a of the Law on Flights and an amendment to Article 18b of the Act on the Protection of the State Border ⁶ (hereinafter referred to as the GrPańU), which allowed the application of the provisions regarding the procedure for handling military aircraft (Article 18b, paragraph 1a) to civilian aircraft carrying no persons or carrying only persons intending to use the aircraft as a means of a terrorist attack. It should be noted that this provision (in the wording described above) is no longer in force. 

It might seem that the Tribunal’s ruling has stripped the state of all its weapons in the potential fight against terrorists planning to use a passenger aircraft as a weapon of attack. However, it should be noted that Polish law recognizes legal instruments that allow for responding to threats described in the challenged provision of the Aviation Law. These include the institution of a state of emergency and – in the event that only terrorists are on board the aircraft – the institution of necessary defence. However, their implementation would require the competent authorities to make an individual decision that would take into account all the circumstances of the specific situation and, consequently, assume full responsibility for its consequences. 

The Constitutional Tribunal therefore stated that the law may exceptionally decriminalise the effects of such behaviour, but it cannot legalise, excluding unlawfulness, an action consisting in deliberately taking the life of innocent people. 

Renegade is coming 

After numerous amendments to the regulations, the Act of 7 July 2023 finally⁷ introduced, among others, the provisions of Article 18bb-Article 18bh of the General Aviation Code , which detail the procedures for dealing with civilian aircraft violating aviation law. It should be noted that this amendment also changed the rules for dealing with military aircraft. 

The new regulation is built around the so-called RENEGADE procedure, which was previously specified in the Regulation of the Council of Ministers of 2 November 2011,⁸repealed by the above-mentioned amendment. 

A look at paragraph 1 of Article 18bb of the GrPańU immediately shows that the regulation applies only to foreign aircraft that cross the state border in violation of the provisions of the Flight Law or international agreements. In the case of such aircraft, the state air traffic management authority may issue a notice to: 

1. leaving the airspace of the Republic of Poland 

2. appropriate change of direction or flight altitude 

3. landing at the airport indicated by this authority 

4. execution of other orders aimed at stopping violations of the airspace of the Republic of Poland. 

In the event that a foreign civil aircraft has crossed the state border and has not complied with the summons or orders of the authority and can be used as a means of attack of a terrorist nature is considered a RENEGADE type object (Article 18bb, paragraph 2 of the GrPańU). 

Therefore, in order to be granted RENEGADE status, three conditions must be met: 

1. a foreign aircraft crosses the border (enters Polish airspace), 

2. does not respond to the calls specified in Article 18bb paragraph 1 of the General Data Protection Regulation or does not comply with the authority’s instructions, 

3. can be used for a terrorist attack. 

he first two criteria are easy to establish. The third, however, largely depends on the assessment made by the authority. The assessment includes the aircraft’s behaviour, the communication conducted by its crew or persons on board, the flight route and any deviations from the route specified in the flight plan or the designated corridor, etc. 

In the situation described above, the aircraft can be assigned to one of three categories: 

1. Suspected RENEGADE 

2. Likely RENEGADE 

3. Confirmed RENEGADE 

A suspected RENEGADE will be a foreign aircraft with unspecified intentions or meeting at least two of the conditions specified in Article 18bb paragraph 3 of the GrPańU: 

The higher category is “Probable RENEGADE”, which requires at least one of the following conditions to be met: 

a) detection of other foreign civil aircraft that do not obey orders; 

b) failure of a foreign aircraft classified as a Suspected RENEGADE to comply with the orders of the air traffic management authority or the Air Defence Commander on Duty;  

c) refusal to execute or lack of response by the foreign aircraft to the commands and signals of the commander of the intercepting aircraft. 

The highest and therefore most risky category is “Confirmed RENEGADE”, which requires cumulative fulfilment of the following conditions: 

a) failure to follow the orders of the intercepting aircraft commander, the air traffic management authority and the Air Defence Commander on Duty; and 

b) possession of information confirming beyond any doubt the intention to use the aircraft as a means of a terrorist attack. 

In the next step, forces and means are deployed to perform military airspace surveillance tasks within NATINAMDS (NATO Integrated Air and Missile Defence System – NATO Integrated Air Defence System). 

Interception and what next? 

Article 18bc of the General Air Force Regulations authorizes the interception of aircraft classified as at least a Suspected Renegade. Military aircraft conducting an interception should identify the foreign aircraft, establish radio and visual contact with it, and guide it to the appropriate heading or altitude. Alternatively, the commander of the intercepting aircraft may force a landing at a designated airport. The decision to intercept rests with the Operational Commander of the Armed Forces. 

Failure to respond by an intercepted aircraft with at least Probable RENEGADE status may, also pursuant to a DORSZ order, result in warning shots being fired (Article 18bd). Further failure to comply with the calls and commands by the Probable RENEGADE or failure to respond to a warning shot will result, in accordance with Article 18be of the GrPańU, in the intercepting aircraft undertaking an escort operation aimed at causing the RENEGADE to land at a designated airport or to leave Polish airspace. 

To summarize, the correct sequence of events should be as follows: 

1. detection of a foreign aircraft that crossed the state border in violation of regulations 

2. a request by the air traffic management authority to: 
   – leaving the airspace of the Republic of Poland 
   – changes in flight direction or altitude 
   – landing at the indicated airport  
   – execution of other orders aimed at stopping violations of the airspace of the Republic of Poland  

3. assigning the aircraft to one of the three RENEGADE categories 

4. interception for the purpose of: 
   – foreign aircraft identification  
   – establishing radio communication and eye contact  
   – guidance to the correct direction or flight altitude 
   – forced landing at the indicated airport  

5. firing warning shots (Probable RENEGADE and Confirmed RENEGADE categories only)  

6. escorting an aircraft for the purpose of:  
   – forced landing at the indicated airport 
   – causing departure from the airspace of the Republic of Poland. 

Last resort measure under the new regulations 

he multi-stage sequence described above is intended to compel the foreign aircraft to behave in a specific manner, in accordance with the regulations and orders of the appropriate authorities. However, hypothetically, it may happen that the efforts of the air traffic management unit, the Air Defence Commander on Duty, the Operational Commander of the Armed Forces, and the commander of the intercepting aircraft will not produce the expected results and the aircraft will continue to disobey the requests and orders of the authorities. 

In such a situation, the Act on the Protection of the State Border provides for the possibility, under strictly defined conditions, of issuing an order to destroy a foreign aircraft (Article 18bf of the State Border Protection Act). 

It should be emphasized that such an order may only be issued in relation to a vessel classified as a “Confirmed Renegade,” meaning it poses a real threat of being used in a terrorist attack. The Operational Commander of the Armed Forces may issue an order to destroy such an aircraft only if the following conditions are cumulatively met: 

1. the circumstances indicate that a foreign civilian aircraft will be used as a means of a terrorist attack, 

2. the attack cannot be prevented by other means, 

3. the foreign aircraft has no persons on board or only attackers/terrorists on board. 

It’s worth noting several interesting issues arising from this provision. First and foremost, a shoot-down order can only apply to an aircraft assigned the highest threat category – Confirmed Renegade – i.e., one for which available information confirms beyond any doubt that it is to be used as a means of a terrorist attack. Such information can come from various sources. On the one hand, it could be a manifesto from the attackers and/or a terrorist group, clearly defining their intentions and identifying a specific aircraft. On the other, it could be intelligence data or information from radio communications from such an aircraft. 

Shootdown conditions – checklist: 

Art. 18bf from a lawyer’s perspective 

Destruction of an aircraft is a last resort. The order may only be issued when the attack cannot be prevented by other available methods – not only those specified in the Act, but also organizational, technical, or crisis management measures (e.g., evacuation). 

The provision incorporates the conclusions of the Constitutional Tribunal’s judgment of 30 September 2008. A key requirement is that there be no unauthorized persons on board. A ship may only be destroyed if it is empty or occupied only by persons intending to use it for an attack. 

This premise should be interpreted strictly. The presence of even one person other than the attacker should exclude the possibility of a shootdown – in accordance with the principle of protecting life. 

However, the issue of intent raises doubts. It is unclear whether direct intent is required, or whether eventual intent, meaning anticipation and consent to an attack, is sufficient. 

Assessing the intentions of all those on board also remains a challenge. Even if they belong to a terrorist group, it doesn’t necessarily mean that each of them intends to carry out an attack. 

These doubts cannot be resolved unequivocally today. Too detailed an analysis could close the “decision window,” and generalizations, in turn, risk violating the law. 

Nevertheless, the regulation can be considered balanced. It limits the risk to bystanders while still allowing for a response.

Optional nature of the provision 

Article 18bf provides for the possibility of issuing an order, not an obligation. This is indicated by the phrase “may decide.” 

Even if the conditions are met, there is no automatic obligation to act. The commander should retain the ability to assess the consequences, for example, the risk to those on the ground. 

The lack of obligation is consistent with the principle of protecting life. The discretionary power provided constitutes a significant “safety valve.”

Regulatory assessment 

The regulations create a coherent system for identifying and responding to threats. The procedures are multi-stage and transparent. 

However, they are not free from loopholes. The first is the lack of explicit consideration of air defence forces, although in practice this has limited significance. 

The second, more serious gap concerns the scope of the regulations. The regulations apply only to foreign aircraft. 

There are no regulations regarding the hijacking of Polish civilian aircraft, which constitutes a significant systemic problem – especially in the light of the experiences of September 11, 2001. 

It is to be hoped that these provisions will remain solely theoretical and will not have to be applied in practice.

Summary 

The issue of the potential downing of a civilian aircraft remains one of the most difficult dilemmas at the intersection of law, security, and ethics. Current Polish regulations attempt to balance the need to protect life and infrastructure on the ground with the constitutional obligation to respect the dignity and life of every person. Therefore, the use of force against a civilian aircraft is subject to stringent conditions and can only be used as a last resort. 

The solutions introduced – particularly the RENEGADE procedure – provide a coherent mechanism for responding to threats, but they do not eliminate all uncertainties, especially in critical situations requiring rapid assessment. Importantly, the legislator has clearly abandoned the possibility of sacrificing the lives of bystanders, which is a direct consequence of constitutional standards. 

Despite the relatively comprehensive regulation of this matter, the system is not free of loopholes – particularly with regard to domestic aircraft. In practice, however, it is hoped that the regulations in question will remain merely a theoretical framework, and that situations requiring their application will never arise.

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